Citation Nr: 0701274
Decision Date: 01/17/07 Archive Date: 01/25/07
DOCKET NO. 04-24 325 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
a right ankle disability
2. Entitlement to an initial evaluation in excess of 20
percent for a left ankle disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Joseph R. Keselyak, Associate Counsel
INTRODUCTION
The veteran served in the Marine Corps from May 1988 to
January 1990 and in the Army from May 1993 to September 1995.
This matter comes to the Board of Veterans' Appeals (Board)
from a September 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri. Jurisdiction of the issues on appeal was later
transferred to the Waco, Texas RO.
FINDINGS OF FACT
1. The veteran's right ankle disability is manifested by 9
degrees of talar tilt and requires the veteran to wear a
brace.
2. The veteran's left ankle disability is not manifested by
ankylosis, or abduction, adduction, inversion or eversion
deformity.
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 40 percent, but
no greater, for a right ankle disability have been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 3.321, 4.1,
4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5270
(2006).
2. The criteria for a disability rating in excess of 20
percent for a left ankle disability have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 3.321, 4.1,
4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes
5270, 5271 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Before assessing the merits of the appeal, VA's duties under
the VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a) (2003), are examined.
VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). Additionally, VA
must indicate which portion of that information should be
provided by the claimant, and which portion VA will try to
obtain on the claimant's behalf, which was accomplished in
this case by a July 2003 letter. The letter informed the
veteran that the evidence should show that his service-
connected disability had increased in severity.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include
the following: 1) veteran status; 2) existence of a
disability; 3) a connection between the veteran's service and
the disability; 4) degree of disability; and 5) effective
date of the disability. The Court held that upon receipt of
an application for a claim of service connection, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, 19 Vet. App. at 484. In the aforementioned
July 2003 letter, the veteran was not provided with notice
regarding how VA determines the degree of disability and
effective date.
Despite any inadequate notice provided to the appellant, no
prejudice results in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the appellant has been prejudiced
thereby). In light of the Board's denial of a higher rating
for a left ankle disability, any questions regarding
downstream elements are rendered moot. As for the right
ankle disability, the RO can remedy any failure to provide
effective date notice following the Board's decision.
The Court in Pelegrini v. Principi, 18 Vet. App. 112 (2004),
continued to recognize that typically a VCAA notice, as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction decision on a claim for VA benefits. In this
case, the appellant received sufficient VCAA notice in a
timely fashion.
It is further noted that in order to be consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), a VCAA notice
must also request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claim 38 C.F.R. § 3.159(b)(1). In this case, the July 2003
letter from the RO asked the veteran to provide any evidence
or information in her possession that would support his
claim.
Next, VCAA requires VA to assist the claimant in obtaining
evidence necessary to substantiate a claim, 38 C.F.R. §
3.159(c), which includes providing a medical opinion when
such is necessary to make a decision on the claim. In this
case, the record contains the veteran's service medical
records, all of the veteran's VA treatment records and all
private records identified by the veteran. The veteran
underwent several VA examinations, and further assessment is
not necessary to make a decision on the appeal. The veteran
has not requested VA's assistance in obtaining any other
evidence.
Based on the foregoing, VA satisfied its duties to the
veteran.
Laws and Regulations
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
Part 4 (2005). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4. Where there is a question
as to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. Any reasonable doubt regarding the degree of disability
is resolved in favor of the veteran. 38 C.F.R. § 4.3.
The VA schedule of ratings will apply unless there are
exceptional or unusual factors which would render application
of the schedule impractical. See Fisher v. Principi, 4 Vet.
App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides
that, in exceptional circumstances, where the schedular
evaluations are found to be inadequate, the veteran may be
awarded a rating higher than that encompassed by the
schedular criteria. According to the regulation, an
extraschedular disability rating is warranted upon a finding
that "the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization that would render impractical the application
of the regular schedular standards." Id.
The evaluation of the same disability under various diagnoses
is to be avoided. Disability from injuries to the muscles,
nerves, and joints of an extremity may overlap to a great
extent, so that special rules are included in the appropriate
bodily system for their evaluation. Both the use of
manifestations not resulting from service-connected disease
or injury in establishing the service-connected evaluation,
and the evaluation of the same manifestation under different
diagnoses are to be avoided. 38 C.F.R. § 4.14.
Notwithstanding the above, VA is required to provide separate
evaluations for separate manifestations of the same
disability which are not duplicative or overlapping. See
Esteban v. Brown, 6 Vet. App. 259, 261 (1994).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, it is the present level of disability that is of
primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58
(1994). In addition, an appeal from the initial assignment
of a disability rating requires consideration of the entire
time period involved, and contemplates "staged ratings"
where warranted. See Fenderson v. West, 12 Vet. App. 119
(1999).
Diagnostic Code 5270 provides for evaluation of ankylosis of
an ankle. A 20 percent evaluation is warranted where the
there is ankylosis in plantar flexion less than 30 degrees.
A 30 percent evaluation is proper where there is ankylosis in
plantar flexion between 30 degrees and 40 degrees, or in
dorsiflexion between zero and 10 degrees. A maximum
evaluation of 40 percent will be assigned where there is
ankylosis in plantar flexion at more than 40 degrees, in
dorsiflexion in more than 10 degrees, or with abduction,
adduction, inversion or eversion deformity. 38 C.F.R.
§ 4.71a, Diagnostic Code 5270 (2006).
Several other Diagnostic Codes provide a maximum 20 percent
evaluation. Diagnostic Code 5271 provides a maximum 20
percent evaluation for marked limitation of motion of an
ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (2006).
Diagnostic Code 5272 provides a maximum 20 percent evaluation
for ankylosis of the subastralgar or tarsal joint in poor
weight-bearing position. 38 C.F.R. § 4.71a, Diagnostic Code
5272 (2006). The Board does not find Diagnostic Codes 5273
and 5274 to be applicable because there is no evidence of
malunion of the os calcis or astralgus or of astralgectomy
appearing anywhere in the record. 38 C.F.R. § 4.71a,
Diagnostic Codes 5273, 5274 (2006)
Normal range of ankle motion is from 20 degrees of upward
dorsiflexion to 45 degrees of downward plantar flexion. 38
C.F.R. § 4.71, Plate II.
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b).
Under that provision, VA shall consider all information and
lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A. §
5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Right Ankle
The veteran first injured his right ankle in 1988 when he
suffered an ankle sprain. Following this injury, he
underwent arthroscopy in 1989, which revealed some synovitis,
especially in the anterior lateral aspect, and mild
degenerative arthritis of the talofibula joint. No loose
bodies were noted and a minimal debridement was done.
Follow-up examination revealed near full range of motion with
minimal crepitus.
In June 2003 the veteran was seen at the VA medical center on
an outpatient basis. At that time the veteran presented
complaining of chronic ankle pain and denied any new trauma.
It was noted that previous X-rays showed arthritis and that
his ankles exhibited full range of motion with no edema and
normal gait.
In April 2004, the veteran was seen at the VA medical center
for a consultation regarding management of his traumatic
arthritis. A treatment note from this period indicates
chronic right ankle traumatic arthritis with ankylosis,
stable.
Ultimately, in September 2004, the veteran received a full
examination of his ankles at the VA medical center. The
examiner noted the history of right ankle injury, as outlined
above. The veteran reported pain in the right ankle as 10/10
and reported that it frequently gave way on him. For the
previous two years the veteran had been wearing an ankle
brace. There was 9 degrees of talar tilt of the right ankle.
Dorsiflexion was to 15 degrees. Plantar flexion was to 20
degrees. Inversion was to 20 degrees. Eversion was to 20
degrees. There was tenderness about the medial and lateral
ankle, with no fluid or local heat. The veteran walked with
a severe limp of the right leg. It was noted that the
veteran had to use a walker and that he wore special shoes.
The examiner diagnosed degenerative joint disease of the
right ankle with status post operative repair with continued
ankle pain, moderate instability and moderate disability with
progression.
The veteran is entitled to a 40 percent, but no greater,
evaluation for the disability of his right ankle. Several
examiners have commented that the veteran's right ankle
exhibits ankylosis. Nonetheless, the veteran's right ankle
exhibits some range of motion and is not truly fixed in
place. The evidence, however, indicates that the veteran's
right ankle exhibits 9 degrees of talar tilt and that he must
wear a brace on this ankle. The Board finds that these facts
approximate an inversion deformity of the veteran's right
ankle. Accordingly, a 40 percent, but no greater, evaluation
is appropriated for the veteran's right ankle disability.
Left Ankle
The veteran's left ankle first began to give him problems in
1994 after he suffered a sprain. Shortly after this sprain,
the veteran had a Chrisman-Snook procedure performed in July
1994. Shortly after the surgery, the veteran received a
medical evaluation in September 1994.
Examination in September 1994 revealed a limited range of
motion with zero degrees of dorsiflexion and 10 degrees of
plantar flexion. There was no instability on lateral stress.
He had a negative anterior drawer. Pulses were 4/4 in the
posterior tibialis and dorsalis pedis. Motor was 5/5
throughout and sensation was intact to touch. He walked with
a normal gait and there was no evidence of a limp.
It was noted that the veteran was undergoing intensive
physical therapy at the time and it was expected that range
of motion would improve.
Of record is a September 1998 orthopedic evaluation of the
veteran's left ankle. The veteran reported continued pain
since the 1994 surgery as well as morning stiffness. He
further reported pain with prolonged standing and when
walking a great distance, and also reported occasional
episodes on uneven ground of his left ankle giving way.
Physical examination in September 1998 revealed a well healed
surgical scar on the posterior aspect of the lateral
malleolus. Anterior drawer and lateral tilt examination were
normal. Range of motion was 10 degrees of dorsiflexion and
25 degrees of plantar flexion. Examination of the subtalar
joint revealed 20 degrees of eversion and 10 degrees of
inversion. All motion was without crepitus or pain. X-rays
revealed normal joint spaces with mild degenerative changes
and chronic ankle pain and moderate ankylosis of the left
ankle with limited ROM was diagnosed. No improvement was
forecasted.
In February 2000, the veteran received an examination of his
left ankle. His subjective complaints were the same as those
related at the September 1998 examination. Examination at
this time revealed no evidence of swelling in the ankle
joint. The veteran's gait was slightly antalgic, favoring
his left leg. Left ankle range of motion was 10 degrees of
dorsiflexion and 30 degrees of plantar flexion. There was a
negative anterior drawer and tilt. All motion was without
crepitus or pain. X-rays revealed no evidence of significant
osteoarthritis, with the possibility of some minimal
narrowing of the joint space. The final diagnosis was of
chronic ankle pain with moderate stiffness and his condition
was not expected to improve, but rather gradually worsen.
In August 2003 the veteran's left ankle was once again
reexamined. At that time the veteran reported pain in this
ankle as 8/10. He stated that his ankle was stiff and that
he would get increasing pain with weight bearing. X-rays of
the ankle showed a drill hole through the distal fibula with
a lot of sclerosis around it. The talus had a tiny spur
between the talus and medial malleolus. Dorsiflexion was to
5 degrees. Plantar flexion was to 20 degrees. Eversion was
to 10 degrees and inversion was to 10 degrees. The VA
examiner diagnosed degenerative joint disease of the left
ankle with status postoperative repair with ankle pain,
degreased range of motion, moderate disability with
progression.
Of record is an April 2004 treatment note from the VA medical
center. At that time the veteran reported for management of
stable traumatic arthritis. It was noted that the veteran
had moderate ankylosis of his left ankle with limited range
of motion; however, no goniometric measurements were taken.
In September 2004 the veteran was seen at the VA medical
center for full examination of his left ankle. At that time
the veteran reported pain in this ankle as 10/10 and did not
wear a brace on this ankle. X-rays in September 2004 showed
moderate degenerative changes and a small bone spur between
the talus and medial malleolus. Dorsiflexion was to 5
degrees. Plantar flexion was to 10 degrees. Eversion was to
15 degrees. Inversion was to 5 degrees. The examiner
diagnosed degenerative joint disease of the left ankle with
status post operative repair in 1994 with continued ankle
pain of moderate disability with progression. The examiner
noted that the ankle was stable.
The veteran is not entitled to an evaluation greater than 20
percent for his left ankle disability. Even though several
examiners have indicated that the veteran's left ankle
exhibits ankylosis and sclerosis, the Board does not find
that the facts substantiate a finding of ankylosis as
contemplated by applicable law. As outlined above, the
veteran's left ankle still exhibits some range of motion. As
evidenced by the latest VA examination, the left ankle is not
fixed between 30 and 40 degrees of plantar flexion or in
dorsiflexion between zero and 10 degrees. Moreover, it is
not fixed in plantar flexion at more than 40 degrees or in
dorsiflexion at more than 10 degrees, and there is no
evidence of abduction, adduction, eversion or inversion
deformity. In the absence of ankylosis, a rating higher than
20 percent is not available under the schedule. Accordingly,
there being no possibility of establishing a higher
evaluation under any other possibly applicable diagnostic
code, the claim must be denied.
ORDER
Entitlement to an evaluation of 40 percent, but no greater,
for a right ankle disability, is granted, subject to the laws
and regulations governing the award of monetary benefits.
Entitlement to an initial evaluation in excess of 20 percent
for a left ankle disability is denied.
____________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs